Point of Law: Sexual harassment on a minor child - Power to summon material witness, or examine person present - Discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by court and not arbitrarily or capriciously

ORDER :

The petitioner is facing trial in Sessions Case No. 1116 of 2017 before the Additional Sessions Court-I, Kollam registered for offence punishable under Section 12 of the Protection of Children From Sexual Offences Act (hereinafter being referred to as POCSO Act)

2. During the pendency of the trial the learned Counsel for the accused filed an application as Crl.M.P.No.159 of 2020 under Section 311 of the Code of Criminal Procedure to recall the child witness/victim who was examined as PW1 for further examination. The learned Addl. Sessions Judge-I, Kollam after considering the scope of the relevant provision in CrPC, Section 33(5) of the POCSO Act and also the rival contentions of the parties, by its order dated 19th February 2020 dismissed the application. Aggrieved by the said order the petitioner/accused has approached this Court with this petition under Section 482 of the Code of Criminal Procedure.

3. Heard the learned counsel for the petitioner as well the learned Public Prosecutor.

4. The allegation against the petitioner is that on 11.12.2016 he has committed sexual harassment on a minor child and thereby committed an offence punishable under Section 12 of the POCSO Act.

5. The victim involved in this case was examined as PW1 on 14.1.2020. Now the case stands posted for examination of the other witnesses. At that stage this petitioner has moved the application under Section 311 CrPC stating that he could not put certain contradictions and omissions to the witness and mark the same while examining her, as he was in haste in connection with another case. Hence, she has to be recalled and examined further, is the submission of the petitioner. The learned Addl. Sessions Judge by the order under challenge dismissed the application.

6. Annexure A2 is the affidavit filed by the petitioner before the court below to recall PW1 for further examination. It is stated in the affidavit that since his counsel was in a hurry in connection with another case which was posted for arguments he could not put certain contradictions and omissions to the witness and got it marked and hence, this application to recall the witness.

7. Section 311 CrPC which is relevant for the present purpose is reproduced here under.

“311. Power to summon material witness, or examine person present-Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”

8. Section 311 CrPC stipulates that the court may at any stage of enquiry, trial or other proceedings may summon a witness or recall a witness if his evidence appears to be essential to the just decision of the case. So a discretionary power is conferred upon the court under Section 311 CrPC, which has to be exercised to render a just decision.

9. The principles related to the exercise of the power under Section 311 of Cr.P.C. have been settled by the Supreme Court in Vijay Kumar v State of Uttar Pradesh and another (2011 (8) SCC 136) as:

''17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of CrPC and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously.....................''

10. Again the Apex Court in Rajaram Prasad Yadav v State of Bihar and another (2013 (14) SCC 461) after discussing various decisions on the subject has reiterated the principle under Section 311 CrPC. In Para 17.4 to 17.7 it was observed as under:

'' 17.